Detailed verdict on appeals against conviction: No proof that Maryam was Nawaz’s dependant at relevant time: IHC

ISLAMABAD: The Islamabad High Court (IHC) on Thursday held that there is no direct or indirect proof that Maryam Nawaz was the dependent of Nawaz Sharif at the relevant time.

The IHC had already acquitted Maryam Nawaz and her husband Captain Muhammad Safdar (retd) in Avenfield corruption reference. A two-member bench of IHC comprising Justice Aamer Farooq and Justice Mohsin Akhtar Kayani issued detailed judgment on Maryam Nawaz and her husband Safdar’s appeals against their conviction in Avenfield reference.

The IHC bench has accepted their appeals after four years. Maryam and Safdar were convicted in July 2018 in Avenfield Apartments corruption reference.

The judgment stated that the questions regarding the key documents in the case and linking the same to Nawaz Sharif as well as appellant No. 1 (Maryam) were asked initially in November 2021 and on multiple dates. However, NAB until last date of hearing failed to assist us on them.

The IHC mentioned that allegation of corrupt and illegal practices under section 9(a)(iv) of the Ordinance against Mian Muhammad Nawaz Sharif was turned down by the trial court and no appeal was filed against it.

The judgment noted that the sole charge against Mian Muhammad Nawaz Sharif was of ‘assets beyond mean’. “In this behalf the assets of the companies as Avenfield Apartments were attributed to him, which according to the prosecution, were in the name of his dependent child i.e. appellant No.1.(Maryam). There is no direct or indirect proof that appellant No.1 was the dependent of Mian Muhammad Nawaz Sharif at the relevant time and the prosecution failed to establish the elements/ ingredients of section 9(a)(v) referred to in preceding paragraphs which are required for transfer of burden of proof to the accused under section 14(c) of the Ordinance, added the IHC verdict. It further said that the charge against Maryam is of aiding and abetting by way of concealing true identity of the owners of the Avenfield Apartments. It noted that under section 14(c), where prosecution establishes assets beyond means of the principal accused or his benamidar or dependent of the accused, the onus shifts on the accused to negate the allegations.

The court said that appellant No.1 was never the principal accused under section 9(a)(v) ibid and only charge under section 9(a)(xii) ibid of aiding and abetting was against her and under the scheme of section 14(c) of the Ordinance, burden never shifted on her to establish ownership rather, all along, it remained on the prosecution.

It added that in the case of appellant No.1, though elaborate evidence has been led to establish guilt of appellants No. 1 and 2 but the same does not prove cogently charge against them, as the documents were regarding a private transaction between a sister and brother, which did not require registration and the Solicitor, practicing in United Kingdom, affirmed the execution who was never called to give evidence.

“The prosecution could not prove the element of aiding and abetting the principal offender, on part of appellant No. 1 for the reasons already noted above. In brief prosecution has failed to prove beyond reasonable doubt that Appellant No. 1 was beneficial owner of Avenfield Apartments or that had anything to do with Neilson Enterprises Limited and Nescoll Limited,” maintained the bench.It continued that appellant No.2 (Safdar) has solely been convicted for evidencing a forged and bogus document, however, there is no evidence that any party has denied the execution. It is trite law that a witness to the document only gives evidence to the extent of witnessing said document and not contents thereof.

According to the court’s judgment, there is nothing on record to establish that documents are bogus apart from allegation that Calibri Font was not available in 2006, on which date, they were executed, however, even that evidence is not creditworthiness; firstly, as the expert could not be regard as an ‘expert’ and secondly as per his own statement in cross-examination, Calibri Font was available albeit in few hands.

It said, “Much emphasis was laid on behalf of NAB that certain facts have already been proven in the proceedings before the Hon’ble Supreme Court of Pakistan and needed not be proved, the referred argument is misconceived inasmuch as the proceedings before the Hon’ble Supreme Court of Pakistan were under Article 184(3) of the Constitution and in the said proceedings, the matter was referred to NAB for initiation of criminal cases; if no proof was required then no referral to NAB was necessitated.”

“The prosecution had to discharge its burden independently in respect of findings of the august Apex Court and this intention is clearly borne out from the observations of the august Apex Court in the above-mentioned review petition reported as ‘Mian Muhammad Nawaz Sharif and others Vs. Imran Ahmed KhanNiazi and others’ (PLD 2018 SC 01), mentioned the verdict.

The Special Prosecutor NAB also sought to argue that benefit of the amendments made in the Ordinance is not available to the appellants; in response, learned counsel for the appellants refuted the said argument by stating that his clients are not seeking benefits of amendments made in the Ordinance.

Referring to the errors in the judgment of the Trial Court, the IHC bench noted that the same is based on wrong application of the law. “In this behalf the reading of the impugned judgment shows that the learned trial court has copiously reproduced the arguments by the defence and even cited the case law, however, while handing down the conclusion has erred in application of the correct law,” said the IHC verdict. It continued that the learned trial court has held the letters from Panama based law firm to be the proof of the fact that appellant No. 1 is the beneficial owner of the Avenfield Apartments. Under section 21(g), which starts with the non-obstante clause and excludes Qanun-e-Shahdat Order 1984 and the other law on the subject, material received from foreign government shall be taken as evidence in the legal proceedings; the referred reasoning prevailed with the learned trial court to reach conclusion that on the basis of the referred letters Mian Muhammad Nawaz Sharif and appellant No. 1 are the owners of Avenfield Apartments.

The bench noted that the conclusion drawn is not correct; first, the special status with the exclusion of normal laws of evidence is only attached to material received from the foreign government, secondly, in the instant case the letters are not from the foreign government but the Panama based law firm thus did not have that special status. The covering letter from the Financial Investigating Agency in British Virgin Island has not vouched for the veracity of the letters from the law firm rather acted just as courier. If the beneficial ownership was confirmed, in the Avenfield Apartments, by the Financial Investigation Agency independently from the record, the position would have been different and section 21(g) ibid would have applied in letter and spirit.

The court said, “Moreover, as already noted the letters from the law firm does not state the basis and the resource for making the statement that appellant No. 2 is the beneficial owner and in absence thereof, reliance to be placed on them for convicting someone is unjustifiable. Even otherwise if the letters are accepted as correct in letter and spirit, they do not further the case of the prosecution as the element of appellant No. 1 being dependent on her father was not proved nor the fact that Mian Muhammad Nawaz Sharif actually forked out the money to buy the properties in question.” “The reasons for the letters from Panama law firm not being conclusive evidence regarding the factum of ownership of appellant No. 1 in Avenfied Apartments are already discussed in preceding paragraphs. In so far as trust deeds are concerned again learned trial court erred in placing reliance on the same for the reasons already discussed. In a nutshell the trust deeds are private documents duly witnessed and the execution of the same is not denied by anyone,” said the court.

Copyright Business Recorder, 2022